Memorandum submitted by the British Humanist
Association
THE BRITISH
HUMANIST ASSOCIATION
The British Humanist Association (BHA) is the
national charity representing the interests of the large and growing
population of ethically concerned non-religious people living
in the UK. It exists to support and represent such people, who
seek to live good lives without religious or superstitious beliefs.
Humanism is a "belief", within the meaning of the ECHR,
the Employment Equality (Religion or Belief) Regulations 2003 and
the Equality Act 2006.
The BHA is committed to equality, human rights
and democracy, and has a long history of active engagement in
work for an open and inclusive society, and an end to irrelevant
discrimination of all sorts. As a member organisation of both
the Equality and Diversity Forum (EDF) and the Discrimination
Law Association, the BHA has worked with other organisations to
advance equal treatment on every ground. In recent years the BHA
has participated in consultations and prepared submissions on
such issues as the Employment Equality Regulations 2003 on
Religion or Belief and Sexual Orientation, and the Equality Act
of 2006, and our Chief Executive served on the Equality and Human
Rights Commission's Steering Group and on the Reference Group
for the Equalities Review and Discrimination Law Review.
INTRODUCTION
This memorandum on the forthcoming Equality
Bill has been prepared for the JCHR's call for evidence on "The
Draft Legislative Programme: JCHR priorities for 2008-09".
Neither a draft Bill nor the Bill itself has
been published. In June 2008 the Government published its
White Paper "Framework for a Fairer Future—The Equality
Bill" and in July 2008 published "The Equality
Bill: Government response to the Consultation. July 2008",
which sets out in more detail (though not in comprehensive or
consistent detail) its proposals in the White Paper. Our points
in this memorandum are made mainly on the basis of the contents
of those documents.
We are most disappointed that the Government
is no longer publishing a draft Bill and that it does not intend
to introduce the Bill to the House of Commons until later in the
Parliamentary session 2008/09—possibly even as late as spring.
It was the opportunity given to scrutinise the Equality Act 2006 as
a draft Bill, we believe, that so improved its provisions.
Since the detail of what might be in the Bill
is still not clear; it is difficult to make targeted and specific
comments. However, in this memorandum we draw to the Committee's
attention to a number of areas where we consider the aims of equality
and non-discrimination may not be realised in the forthcoming
Equality Bill.
THE EQUALITY
BILL
We welcome proposals to introduce an Equality
Bill just as we have welcomed the Government's overall commitment
to equality and the positive developments of the last 10 years.
We believe the new Equality Bill will build on existing discrimination
and equality law and make it more readily accessible to service
providers and employers. It will also represent a single charter
for equality, which will be better understood by citizens and
around which a new culture of equality can cohere with the Equality
and Human Rights Commission (EHRC) as its watchdog.
We broadly welcome (although with some concerns
about the details) the Government's proposals to:
— Introduce a new equality duty on public
bodies which will cover all protected grounds, including gender
reassignment.
— End age discrimination.
— Strengthen enforcement.
In addition to those above, there are a number
of specific proposals in the Government's "Response to the
Consultation" that we support. These include:
— Employment tribunals being allowed to
make wider recommendations in discrimination cases.
— Proposal to allow discrimination claims
to be brought on combined multiple grounds—although we are
disappointed that specific measures on this seem unlikely to be
included in the Equality Bill.
— Commitment to further work and consultation
on representative actions in discrimination cases.
— Harmonisation of definition of indirect
discrimination.
— The extension in various ways of protection
against discrimination because of gender reassignment.
— More protection against discrimination
in private clubs.
— Removal of discrimination on grounds
of sexual orientation in insurance.
However, we would like to draw the Committee's
attention to a number of areas that we consider will weaken the
forthcoming Bill and so may weaken protection from, or even increase
discrimination. These include topics which have not been covered
by the White Paper or in the Government's "Response to the
Consultation", for example detail on the introduction of
key provisions by secondary legislation, eg the equality duty,
and the lack of discussion of specific exemptions that will be
retained from existing legislation.
Tribunal recommendations
The proposal to extend the power of tribunals
to make recommendations wider than in respect of the individual
discriminated against is to be welcomed. This could be particularly
helpful in cases where a religious ethos GOR is claimed, and the
employer essentially ignores the findings of a tribunal in a particular
case and carries on with its policy. The problem is that the Government
is currently proposing that there should be no sanctions whatsoever
for failure by an employer to comply with such a tribunal recommendation.
This completely undermines its potential effectiveness and probably
doesn't comply with the requirement under EU law that any sanctions
must be effective and dissuasive.
RELIGIOUS PRIVILEGE
It is disappointing, although not in the least
surprising, that those who oppose the extension of protection
against discrimination in the Equality Bill to individuals because
of, for example, gender reassignment are predominantly religious
groups. What is more disappointing however is that there is every
indication that the privilege that is afforded to religion in
current legislation will not only be retained in the Equality
Bill, but will be extended. For example, while we applaud the
Government's intention in its "Response to the Consultation"
not to allow exceptions from the law on gender reassignment that
would permit religious organisations to discriminate when they
are performing public functions, we are astonished that the Government
then unquestioningly states: "We accept there are good reasons
to allow exceptions because of religious doctrine" (9.19).
This suggests wide exemptions from the law, possibly for any group
or organisation who claims that they are religious and that their
religious beliefs prevent them from treating every human being
equally and with respect. To allow wider exceptions from the law
(there are already far too many—see below) so as to allow
religion or belief groups to discriminate must be against the
entire rationale for the Equality Bill—a Bill which should
be a groundbreaking piece of legislation focused wholly on protecting
individuals from unjust discrimination and not on providing wide
exceptions for those who do not wish to comply with the law.
Another indication that the Equality Bill may
further entrench religious privilege is in the Government's "Response
to the Consultation" itself. We were very disappointed to
see that "faith" groups and communities are marked up
at least twice in that response as deserving of special treatment
and consultation (see paragraphs 2.60 and 5.35, for example).
Communities or groups defined by "faith" should not
be privileged in this way, but should be treated as any other
civil society organisation. Indeed, especially in the context
of the Equality Bill, it seems bizarre to see and treat "faith"
communities in a way which can only be divisive and exclusive.
We draw the Committee's attention to the further point that, if
the Government is going to single out such groups and communities,
then they should be focusing on "religion and belief"
communities and groups, which would include humanists, rather
than exclusively "faith" groups, reflecting the terminology
and equal status of religion and belief (including non-religious
belief) as set out in the Human Rights Act 1998 and supported
by European case law. We hasten to add that we seek no such special
treatment or exemptions from the law for ourselves and would oppose
them.
EQUALITY DUTY
We support a limited equality duty which will
extend to cover age, religion or belief (which includes non-religious
beliefs), sexual orientation and gender reassignment, as well
as race, gender and disability and we welcome a statement of purpose
for that duty (although depending on the detail of that). However,
we are disappointed that more detail has not been given about
what this duty will look like, when it will apply, to whom exactly
it will apply, or what differences (if any) there may be in the
general and specific duties.
We have particular interest in the extension
of the general equality duty to the religion or belief strand.
The proposed duty will retain but more tightly define the three
"limbs" of the existing duties: eliminating unlawful
discrimination and harassment; advancing equality of opportunity;
and advancing good relations between different groups. While we
would support a public duty to eliminate unlawful discrimination,
we do not support a duty to advance equality of opportunity or
to promote good relations in relation to religion or belief.
There are clear disadvantages to and practical
difficulties in extending these duties to religion or belief.
For many, religion or belief is a private matter and putting pressure
on people to declare a religion or belief publicly and express
it more openly than they may wish is undesirable. Furthermore,
we consider that there is insufficient evidence that religion
or belief is a useful marker of disadvantage.
As the Government itself recognises in its "Response
to the Consultation", reliable statistics on religion or
belief (and on sexual orientation) "are not available"
and "there are issues of privacy involved in gathering data
which might provide statistics" (7.25). Religion or belief
can be measured in many ways—in terms of beliefs, in terms
of practices and in terms of identity. Even within these indicators
there are widely differing categories. If unreliable data—such
as 2001 census data—is used by public authorities as
the basis for action in the area of religion or belief, they may
well take inappropriate actions.
Extending the duty to religion or belief may
lead to particular groups being given too strong a voice, and
so might lead to some prominent and perhaps unrepresentative individuals
getting a disproportionate voice and influence which would, in
turn, have negative impacts on social cohesion.
We are further concerned that exceptions provided
for in the Equality Bill would exacerbate the potentially unequal
position of humanists within the general duty. The exceptions
currently permitted in the law on religion or belief (see below)
are very wide and largely guarantee inferior treatment of humanists,
and the non-religious generally. Other laws, such as the Education
Acts as amended, largely prevent the full enjoyment by humanists
of any positive impact of a future duty in precisely the areas
where discrimination is most common.
For the general duty to be extended successfully
to religion or belief, there must be statutory guidance to public
authorities to stress the risks and difficulties they will face
in implementing this duty, and many of the exceptions currently
permitted in law on religion or belief and which are currently
likely to be written into the Equality Bill must instead be repealed.
There is no warrant for creating a hierarchy
in which "faith" beliefs are privileged in comparison
with philosophical beliefs. If the duty is to be extended to religion
or belief, the prohibition on discrimination and the positive
duty to promote equality applies with the same force to those
who have a humanist belief or have no belief at all (since lack
of belief is clearly covered), and this should be reflected clearly
in any government codes of practice and similar documents.
Procurement
Another area of real concern in relation to
the Equality Bill generally and the equality duty specifically
is that it is not clear whether the equality duty will be extended
to organisations working under contract—the Government is
looking at a range of legislative and non-legislative measures
in procurement. With the Government increasingly contracting out
welfare and other public services to religious organisations,
it is vital that such organisations are bound by the equality
duty and any other protective anti-discrimination measures or
codes of practice when they are performing a public function.
There are problems of discrimination both in
employment and in service provision that are specific to religious
service providers—even those working under contract with
the state. It is not only the exemptions from Part 2 of the
Equality Act and the Employment Equality (Religion or Belief)
Regulations 2003 and the Employment Equality (Sexual Orientation)
Regulations 2003 that allow religious organisations to discriminate
in various ways and to a wide extent. The fact that contracted
organisations are not considered to be public authorities, or
performing public functions, in terms of the HRA and are therefore
not bound by that Act leaves religious organisations open to discriminate,
harass and infringe service users' human rights, such as the right
to freedom of conscience and belief. At the least, should public
services be contracted to religious organisations, there should
always be a choice of an alternative, secular provider.
We recommend that all organisations performing
public functions are bound by both the HRA and the equality duty.
In terms of the Equality Bill specifically, there should be nothing
less than a specific provision that any organisation, without
exception, that is performing a public function must be bound
by the equality duty. Importantly, the meaning of "public
function" or similar terminology used in the Equality Bill
must be wide and absolutely not take the currently very narrow
meaning in the HRA as defined by case law.[108]
Any exemptions from equality legislation for
religious organisations should not apply when they are contracted
to provide a public service.
EXCEPTIONS IN
THE EQUALITY
BILL
In general, we welcome a more streamlined, transparent
and consistent approach to exceptions and make the point that
there should only be minimal exceptions from this Equality Bill.
Genuine Service Requirements
However, we are extremely disappointed that
the Government has rejected the inclusion of genuine service requirements
(GSR), despite the fact that "the majority of respondents
on this issue favoured introducing a genuine service requirement",
and is instead opting for a series of blanket exceptions.
In our response to the Discrimination Law Review
consultation, we urged the consideration of "genuine service
requirements" as a feature of the Equality Bill. We see GSR
as an alternative to the current practice in UK discrimination
law (especially on grounds of religion or belief) of exempting
whole classes of organisation from what should be universally
applied principles of equality and as a way of introducing consistency
and a harmonised approach to exemptions across the grounds.
We are very concerned about the exemptions from
prohibitions on discrimination granted to religion or belief groups
in Part 2 of the Equality Act, which were hard-fought in
both the Commons and the Lords. In the specific case of religion
or belief, therefore, a "genuine service requirement"
could have provided a flexible test that depended on the nature
of what was being done rather than the identity or beliefs espoused
by the organisation providing it or the individual doing it, and
so minimise the risk that too wide an exception was being created.
We maintain our position that a genuine service
requirement would simplify the law and help to minimise what we
consider unnecessary and unjustified exceptions from the law (see
list and further discussion below).
Genuine Occupational Requirement
Our experience of the GOR in terms of religion
or belief has been, as we predicted, that the law is open to too
wide an interpretation. Under the Employment Equality (Religion
or Belief) Regulations 2003, regulation 7(3) permits employers
with "an ethos based on religion or belief" to discriminate
in cases where "being of a particular religion or belief
is a genuine occupational requirement for the job" and "it
is proportionate to apply that requirement in the particular case".
These employers have a less rigorous test to prove than employers
who do not have a particular "ethos based on religion or
belief" which, under regulation 7(2), must show a "genuine
and determining occupational requirement".
The test in the Employment Equality (Religion
or Belief) Regulations 2003 to justify genuine occupational
requirement is less rigorous than in the Directive and legislation
on race and other grounds. We believe this is a serious infringement
of the rights of people not to be discriminated against on the
grounds of their religion or belief, particularly in view of the
fact that large religious organisations are the most likely discriminators.
Already there is DTI funded guidance from the Christian organisation
Faithworks which advises organisations how even their coffee shop
manager post can be reserved for a Christian. In our view, this
is not what was intended by the law. There is some evidence that
an unintended consequence of the Regulations has been an increase
in discrimination suffered by humanists and others in the employ
of organisations choosing to "clarify" their ethos as
religious and take advantage of the newly explicit ability they
have to discriminate (see below example).
For historical and other reasons, most of these
organisations, including most of the largest employers, are Christian;
hence it is not only the non-religious, but also adherents of
minority religions who are discriminated against. Even organisations
in receipt of public money to provide services are operating this
wide discrimination.
In the forthcoming Equality Bill, if the GOR
is to be retained we would like to see it modified and much more
restricted than it is at present, in order to reverse the increase
in discrimination against employees on grounds of religion or
belief from what there was before the Regulations came in (see
more discussion of these Regulations below).
Christian organisations are increasingly using
the GOR under the Employment Equality (Religion or Belief) Regulations
2003 in order to discriminate widely. In 2007, this area
of law was tested for the first time in two employment tribunals—the
legal costs of one of the claimants were paid for by the British
Humanist Association, the other's by the claimant's union UNISON.
In May 2008 the Tribunal published its judgments which were
unanimous in favour of the claimants.
The Tribunal heard that Prospects, a Christian
charity which receives public money for its work with people with
learning disabilities, had previously employed a number of non-Christian
staff and volunteers, including a number who were transferred
to them under TUPE Regulations, and that this arrangement had
worked successfully. In 2004, however, Prospects began using the
GOR and began recruiting only practising Christians for almost
all posts, and told existing non-Christian staff that they were
no longer eligible for promotion. The Tribunal found that Prospects
had acted illegally in doing so, finding, in both Sheridan v Prospects
and Hender v Prospects that the Respondent had unlawfully discriminated
against the Claimants on the grounds of religion or belief contrary
to the Employment Equality (Religion or Belief) Regulations 2003 and
that they were constructively dismissed.
Importantly, the Tribunal in Sheridan v Prospects
shows that blanket discrimination in employment policies and practices
on grounds of religion or belief is unacceptable and clearly not
the intention of the legislation to allow, and that an instruction
to discriminate against someone on the basis of that person's
religion or belief will be unlawful. The Tribunal's judgment makes
clear that a court will make an objective assessment of what a
"religious ethos" is, and states that it is not for
the religious organisation itself to define its ethos, where this
does not accord with reality on the ground.
We commend both judgments to the Committee:
Despite those judgments, Prospects are still
discriminating widely in their employment positions, applying
GORs to most positions advertised. We have raised this matter
with the EHRC who are investigating this but make the point that
in the forthcoming Equality Bill, great care needs to be taken
to restrict as far as possible the scope for discrimination on
grounds of religion or belief in employment. This example also
demonstrates the importance of tribunals being able to make recommendations—and
for a legal requirement to comply.
We recommend that the GOR for religion or belief
in the Equality Bill must be much more strictly defined than at
present and should ensure that, rather than just asserting a religious
"ethos", employers must "by reason of the nature
of these activities or of the context in which they are carried
out, a person's religion or belief constitute a genuine, legitimate
and justified occupational requirement, having regard to the organisation's
ethos",[109]
in order to apply a religion or belief GOR to a position.
Specific exceptions of concern
We are especially concerned that the Equality
Bill will maintain (as was the Government's intention in the Discrimination
Law Review consultation document) the extraordinarily extensive
exceptions in Part 2 of the Equality Act 2006. Some of those
are necessary and justified, but together they amount to a codification
of almost all current institutional religious discrimination—and
to maintain those would compromise the principles of greater equality
and less discrimination as is the aim of the new Bill. The exceptions
in Part 2 of the Equality Act 2006 entrench discrimination
and give immunity to the institutions responsible for it, rather
than protecting individuals discriminated against by these institutions.
The Equality Bill should only retain those exemptions that can
be objectively justified.
Exceptions in the Equality Act 2006 that
should not be retained:
Equality Act Part 2 s50: This section
permits state and independent schools designated as having a religious
character to discriminate against children on grounds of their
religion or belief or the religion or belief of their parent[s].
They can discriminate against pupils in decisions about whether
to admit them to the school, the terms of admission, and the access
they afford them to any benefit, facility or service.
We acknowledge (though we regret) that it is
the policy of the Government to continue to allow discrimination
against children and their parents in admissions to state schools
with a religious character. However, we do not believe that any
school should be permitted to discriminate against a child once
she is a pupil. Many pupils in state schools will not be of the
religion or belief of the school. We argue at the very least therefore,
for a repeal of the exception allowing schools to discriminate
in the access they afford to children to any "benefit, facility
or service". However, we believe that a genuine service requirement
would be sufficient to replace the whole of s50.
Equality Act Part 2 s52(4)(k): This
section permits discrimination by public authorities if their
actions are in relation to the curriculum of an educational institution,
admission to an educational institution which has a religious
ethos, acts of worship or other religious observance organised
by or on behalf of an educational institution (whether or not
forming part of the curriculum), the governing body of an educational
institution which has a religious ethos, transport to or from
an educational institution, or the establishment, alteration or
closure of educational institutions.
Again, we realise that this exception is designed
to protect the discriminatory provisions of other statutes and
that the Government does not intend to repeal or amend those discriminatory
statutes. However, as with s50, we believe this objective could
be achieved through a single genuine service requirement without
the risks of discrimination unintended by the Government which
are presented by the current blanket exception.
Equality Act Part 2 s57: This section
permits certain organisations to discriminate against people in
admission to membership, participation in activities, the provision
of goods, facilities and services and the use or disposal of premises.
We recognise that organisations such as the BHA,
related to a "belief" in the terms of the law, are covered
by this clause too, but we see no reason why the required exceptions
in this area could not be provided more simply and with fewer
possibilities for unwarranted discrimination by the use of a genuine
service requirement as recommended above.
Equality Act Part 2 s59: This section
permits educational institutions established or conducted for
the purpose of providing education relating to, or within the
framework of, a specified religion or belief to restrict the provision
of non-educational goods, facilities or services, and the use
or disposal of premises for non-educational purposes on the grounds
of the purpose of the institution, or in order to avoid "causing
offence, on grounds of the religion or belief to which the institution
relates, to persons connected with the institution".
We do not believe that "offence" is
a sufficient reason to permit discrimination. Again, we believe
that all such legitimate actions would be covered by a genuine
service requirement.
Equality Act Part 2 s60: This section
permits secular charities that discriminate in requirements for
membership on the grounds of religion or belief to continue to
do so. We do not know how many organisations this applies to,
but it was inserted into the Equality Act to allow the Scouts
and Guides to continue to discriminate against humanists and other
atheists in the conditions for membership.
Complaints about the discrimination by the Scouts
and Guides and related requests for assistance are the second
most commonly received by the BHA, following complaints about
discrimination in education, and it is clear that the Scouts and
Guides are two of the most discriminatory organisations in terms
of the non-religious and the impact on their lives.
The Scouts and Guides are both in receipt of
public funds and in some areas they represent the only youth activities
available. They disingenuously claim to be inclusive while refusing
membership from humanists and other atheists, and refusing to
categorise themselves as religious organisations, even though
they admit only religious members (although Scout and Guide organisations
in some other countries admit atheists). For the law to assist
them in this hypocrisy and to sanction their discriminatory behaviour
is breathtakingly wrong. Removing this exception—introduced
into the Bill at the last minute and without proper debate—and
leaving the Scouts' and Guides' discrimination to stand or fall
in the context of a genuine service requirement is the only way
either to offer the many people suffering disadvantage at their
hands some element of protection or to compel the Scouts and Guides
to clarify their status as religious organisations, to the benefit
of public understanding.
Equality Act Part 2 s51(2)(3): This
section permits a local education authority or an education authority
to discriminate in the provision of schools and functions related
to transport. It could easily be repealed if a genuine service
requirement were to be introduced.
Exceptions in the Employment Equality (Religion
or Belief) Regulations 2003:
R/B Regulation 7(3): See above for discussion
of this and our recommendation.
R/B Regulation 39: This regulation permits the
discrimination allowed by sections 58 to 60 of the School
Standards and Framework Act 1998 to continue.
We believe that the fact that the law prohibiting
discrimination on grounds of religion or belief in Great Britain
is subject to ss. 58-60 School Standards and Framework Act
1998 is a serious infringement of the rights of people not
to be discriminated against on the grounds of their religion or
belief and is arguably inconsistent with the EU Employment Directive.
The number of senior posts open to humanist teachers is about
75% only of that open to Christians. We note that it is also not
very good for schools and their pupils—the most re-advertised
headteacher posts are those with a religious requirement attached.
We believe that sections of education law allowing discrimination
should be repealed by the Equality Bill.
HARASSMENT
The Government is not extending protection against
harassment on the grounds of sexual orientation or on religion
or belief outside the field of employment. On the one hand, this
may be positive—not least because should the Government
introduce such protection in the Equality Bill, there is every
reason to believe that it would never legislate to prohibit harassment
in those areas where it is most prevalent, such as in "faith"
schools, and would instead make exceptions within the law for
the worst discriminators and so the law would never protect humanists
and others where they need protection.
However, we are disappointed that the Government
does not agree that a useful distinction can be made between "closed"
environments, such as schools (there are particular and well-known
problems in faith schools), prisons, hospitals and hospices (where
service users are "captive" with limited choice and
control over their environment) and other extra-employment contexts.
Indeed, it is not just a question of open and closed spaces: harassment
becomes an issue whenever people do not have a choice of service
provider, including but not limited to when they have to receive
a public service from a contracted religious organisation.
We are also disappointed that the Government
does not agree that it would be reasonable to forbid harassment
by public authorities (including organisations operating under
contract). If religious charities or organisations increasingly
provide such services under contract, the incidence of harassment,
often of very vulnerable people, on religion or belief grounds
will increase. In any case, we do not see any scope for exemptions
from any future law on harassment in this area.
We would like the Government to look again at
harassment; it is clear to us that there are circumstances where
it would be appropriate to legislate against harassment on grounds
of sexual orientation. We are very much in favour of a total prohibition
of harassment on these grounds.
POSITIVE ACTION
We are concerned that some of the positive action
measures that the Government proposes for inclusion in the Equality
Bill may actually increase inequality.
We are concerned that the proposal to extend
voluntary positive action measures in employment to allow employers
to take under-representation into account when selection for promotion
or employment between "two equally qualified candidates"
may in fact lead to discrimination on the basis of a group identity
rather than an individual's identity. We certainly question whether
there can ever truly be two candidates who are exactly and equally
qualified.
Moreover and in reference to any positive action
measures for religion or belief, there would be specific concerns
related to identification and measurement of beliefs, to infringements
of privacy and to the justification for making decisions on employment
or promotion on the basis of religious or non-religious beliefs.
We reiterate our concerns made above under discussion of the equality
duty regarding difficulties with gathering, interpreting and using
statistics and evidence for religion or belief.
British Humanist Association
30 October 2008
108 We would recommend the meaning of public function
in the Equality Bill to reflect that as proposed in Andrew Dismore
MP's Bill "Human Rights Act 1998 (Meaning of Public
Function) Bill" http://www.publications.parliament.uk/pa/cm200708/cmbills/045/2008045.pdf Back
109
http://ec.europa.eu/employment_social/fundamental_rights/pdf/legisln/2000_78_en.pdf Back
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